TEXAS ETHICS COMMISSION

ETHICS ADVISORY OPINION NO. 8

April 23, 1992

Interpretation of
confidentiality provision set out in section 1.21 of article 6252-9d.1, V.T.C.S. (AOR-10)

The Texas Ethics Commission has
been asked to consider a number of questions about the confidentiality provision set out
in section 1.21 of article 6252-9d.1. That confidentiality provision applies to certain
information and proceedings in regard to sworn complaints filed with the commission.

Any individual may file a sworn
complaint with the commission alleging that a person has violated a statutory provision or
rule administered by the commission.1 V.T.C.S. art.
6252-9d.1, § 1.15. Within 14 business days of the receipt of a complaint, the
commission must "send written notice to the complainant and the respondent." Id.
§ 1.16(b). The notice shall state whether the complaint complies with the form
requirements of article 6252-9d.1. Id. If the sworn complaint meets the
statutory form requirements, the commission must determine by record vote whether the
commission has jurisdiction over the alleged violation. Id. § 1.17(c). Within
five days of that vote, the commission shall send written notice to the complainant and
the respondent as to whether the commission has jurisdiction. Id. § 1.17(d).
If the commission determines that it has jurisdiction, the notice shall include a copy of
the complaint as well as other specified information. Id. Other provisions of the
statute set out procedures for preliminary review of a sworn complaint, an informal
hearing, and a formal hearing. Id. §§ 1.18, 1.19, 1.20, 1.22, 1.23. The
confidentiality provision, section 1.21, provides in part:

(a) Except as provided by
Subsection (c) of this section, proceedings at a preliminary review or informal hearing
performed by the commission, a sworn complaint, and documents relating to and any
additional evidence relating to the processing, preliminary review, informal hearing, or
resolution of a sworn complaint or motion are confidential and may not be disclosed unless
entered into the record of a formal hearing or a judicial proceeding, except that a
document or statement that was previously public information remains public information.

The commission may impose a civil
penalty of not more than $10,000 or the amount of damages incurred by the respondent,
whichever is greater, for a violation of section 1.21. V.T.C.S. art. 6252-9d.1,
§ 1.21(e).2

The requestor's first question
about the confidentiality provision is whether a person intending to file a sworn
complaint with the Ethics Commission may discuss the matter with the press or public. The
confidentiality provision makes the following confidential: (1) preliminary review or
informal hearing proceedings, (2) a sworn complaint, (3) documents relating to the
processing, preliminary review, informal hearing, or resolution of a sworn complaint, and
(4) evidence relating to the processing, preliminary review, informal hearing, or
resolution of a sworn complaint. The question, then, is whether discussion of a proposed
sworn complaint fits in one of those four categories. A discussion of a proposed sworn
complaint does not fit in any one of the first three categories since it is not a
proceeding, it is not a sworn complaint, and it is not a document. The fourth category of
confidential information is evidence relating to the "processing, preliminary review,
informal hearing, or resolution of a sworn complaint." Those activities can occur
only after the filing of a sworn complaint. It follows that a discussion of the proposed
complaint would not constitute evidence relating to those activities. Therefore,
section 1.21 does not prohibit a person from discussing with the press or public the
substance of a complaint the person intends to file with the Ethics Commission or the fact
that the person intends to file the complaint.

The second question is whether a
person who has filed a complaint may reveal to the press the fact that he filed a
complaint and the factual basis of the complaint. Section 1.21 is susceptible of
different interpretations in this regard. Section 1.21 provides that a sworn
complaint "may not be disclosed." This could simply mean that the Ethics
Commission may not disclose the document that is filed with the Ethics Commission, or it
could mean that the Ethics Commission may not disclose the document or the fact that such
a document exists. A broad interpretation of the same language, on the other hand, would
be that the fact that a sworn complaint has been filed and the factual basis of the
complaint cannot be disclosed by anyone, including the complainant. Although the statutory
language may permit such a broad interpretation, the federal courts have made clear that
the confidentiality provision, if so interpreted, would violate the First Amendment to the
United States Constitution.

In Landmark Communications,
Inc. v. Virginia, 435 U.S. 829 (1978), the United States Supreme Court considered the
constitutionality of confidentiality provisions applicable to proceedings before a
Virginia commission that handled complaints about judges. The Virginia constitution said
that proceedings before the commission were confidential, and a Virginia statute made it a
crime for any person to divulge the identity of the subject of the proceedings or any
evidence from the proceedings. Id. at 830-31 n.l. The Virginia Supreme Court had
held that those provisions permitted the criminal prosecution of a newspaper for printing
information about a proceeding before the Virginia commission. Id. at 831-32. The
United States Supreme Court held that the First Amendment did not permit such prosecution.
The specific holding was that the First Amendment did not permit criminal punishment of
persons who were "strangers to the inquiry" for divulging truthful information
about the proceedings. Id. at 837-38.

Although the decision in Landmark
Communications is relevant to the question at hand, it may not be directly applicable
since a complainant may not be a "stranger" to a proceeding before the Ethics
Commission. But see V.T.C.S. art. 6252-9d.1, § 1.25(c) (complainant is
not a party to a preliminary review, informal hearing, or formal hearing before the
commission). Other federal cases, however, have established that a statute prohibiting a
person from disclosing the fact that he filed a complaint with a body such as the Ethics
Commission would be unconstitutional. SeeBaugh v. Judicial Inquiry & Review
Comm'n, 907 F.2d 440 (4th Cir. 1990) (considering constitutionality of Virginia
disclosure provisions applicable to participants in commission proceedings and remanding
for further consideration).

Doe v. Gonzalez, 723 F.
Supp. 690 (S.D. Fla. 1988), aff'd 886 F.2d 1323 (11th Cir. Fla. 1989), involved a
Florida statute that prohibited a person from disclosing his intention to file a complaint
before Florida's State Ethics Commission, the existence or contents of a complaint, or any
documents connected to a complaint. The court noted that Landmark Communications
had not considered the constitutionality of a provision prohibiting a complainant
from discussing an ethics complaint. The court concluded, however, that the analysis in LandmarkCommunications extended to the case before it and that the Florida statute violated
the First Amendment. See alsoDoe v. Florida Judicial Qualifications Comm'n,
748 F. Supp. 1520 (S.D. Fla. 1990) (striking down Florida statute that prohibited
disclosure of fact that complaint had been filed with Judicial Qualifications Commission).
In Providence Journal Co. v. Newton, 723 F. Supp. 846 (D.R.I. 1989), the court
considered the constitutionality of a Rhode Island ethics law that prohibited all public
discussion of the existence and content of ethics complaints against public officials.3
Again, the court found that the First Amendment did
not permit such a restriction. In a 1991 case, Roe v. Akamine, No. 91-00252 DAE
(U.S.Dist. Ct. of Haw., Sept. 26, 1991), a federal district court considered the
constitutionality of a confidentiality provision in the Hawaii state ethics law. The
Hawaii provision prohibited an individual who made a complaint to the state ethics
commission from divulging information about the complaint. The court entered an order
approving a stipulated agreement that the provision was unconstitutional and
unenforceable. Id.

These cases establish that the
First Amendment prohibits the state from preventing a person who files an ethics complaint
from stating to a member of the press that he has filed a complaint.4
Thus, because a statute is to be construed in a manner that renders it constitutional, we
construe the prohibition on disclosure of a sworn complaint to apply to the Ethics
Commission and its staff, not to the person who filed the sworn complaint.5SeeState v. Shoppers World, Inc., 380
S.W.2d 107, 111 (Tex. 1964); Earle v. Program Centers of Grace Union Presbytery, Inc.,
670 S.W.2d 777, 779-80 (Tex. App.--Fort Worth 1984, no writ); see alsoWhite v.
City of Norwalk, 900 F.2d 1421 (9th Cir. 1990) (city's narrow construction of
ordinance adopted by federal court and constitutionality of ordinance therefore upheld).

The third question is whether a
person who is the subject of the complaint may discuss the complaint. We have already
determined that the confidentiality provision applies to the commission and its staff, not
to the complainant. The statute is not susceptible of a construction that would extend the
provision to the respondent and not the complainant. Also, although none of the cases
discussed above considered the right of a respondent to discuss the contents of a
complaint, we do not think the First Amendment would permit the construction of a statute
that would allow the expression of one viewpoint--in this case, that the respondent has
violated the law--but not permit the respondent, who is likely to have a different
viewpoint, from speaking. SeeCity Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 804 (1984) (First Amendment forbids government to regulate
speech in ways that favor some viewpoints or ideas at the expense of others).

In the context of this question,
the commission would like to clarify a related issue. The question has arisen as to the
point at which the commission may provide a copy of the sworn complaint to the respondent.
As we discussed above, within 14 business days after a complaint is filed, the commission
must "send written notice to the complainant and the respondent." V.T.C.S.
art. 6252-9d.1, § 1.16. The notice "must state whether the complaint complies
with the form requirements" of article 6252-9d.1. Id. Later, after the
commission has made a determination about jurisdiction, the commission must again send
notice to the complainant and the respondent. Id. § 1.17(d). If the
commission determines that it has jurisdiction, the notice shall include a copy of the
sworn complaint and other information. Id. Because this notice must include a copy
of the sworn complaint, it will, of course, reveal the identity of the complainant and the
specifics of the complaint. The statute does not require, however, that the initial 14-day
notice contain a copy of the sworn complaint; it merely states that the commission must
send "notice" to the respondent.6 We
think, however, that a common-sense understanding of the word "notice" in this
context would require that the respondent be notified not only of the fact of the
complaint but also of the source and the specifics of the complaint. Such a conclusion
does not disserve any interest of the complainant since the statute makes clear that the
commission cannot act on a complaint without revealing the identity of the complainant to
the respondent, and presumably a complainant would file a complaint hoping that the
commission would act on it. Accordingly, the commission will include a copy of the
complaint in the 14-day notice to the respondent.

The fourth question is whether
the name and address of a person filing a complaint is ever subject to public disclosure.
A sworn complaint, which would include the name and address of the complainant, is
confidential "unless entered into the record of a formal hearing or a judicial
proceeding." Id. § 1.21(a). Thus, if the name or address of the
complainant is entered into the record of a formal hearing or a judicial proceeding, the
confidentiality provision would no longer apply and the information would be subject to
public disclosure under the Texas Open Records Act, article 6252-17a, V.T.C.S.

SUMMARY

A person who intends to file a
sworn complaint with the Ethics Commission may discuss with the press or the public the
fact the he intends to file a complaint and the contents of the proposed complaint. A
person who has filed a sworn complaint with the commission may discuss with the press or
the public the fact that he has filed a complaint and the contents of the complaint.

The commission must give notice
of a sworn complaint to the respondent within 14 days after the commission receives the
complaint, and as part of that notice, the commission must identify the complainant and
the nature of the complaint.

The respondent to a sworn
complaint filed with the commission may discuss the fact that the complaint has been filed
and the contents of the complaint.

The Ethics Commission may release
to the public the contents of a sworn complaint, including the name and address of the
complainant, if that information is entered into the record of a formal hearing or a
judicial proceeding.

1The statutes
administered and enforced by the Ethics Commission are article 6252-9b, V.T.C.S., chapters
302 and 305 of the Government Code, and title 15 of the Election Code. V.T.C.S. art.
6252-9d.1, § 1.11.

2A violation
of section 1.21(a) is a Class A misdemeanor. Id . § 1.21(d). The commission,
however, does not have any authority to bring criminal prosecutions.

4The cases
discussed above all deal with governmental bodies that handled complaints about public
officers or employees. The Texas Ethics Commission has authority to consider complaints
alleging violations of four statutes. The subjects of the complaints will not necessarily
be public officers or employers. For example, the subject could be a lobbyist, see
Gov't Code ch. 305, or a person making an expenditure to support a certain outcome in an
election, see Elec. Code § 253.061. Even if the First Amendment analysis would be
different in cases in which the subjects of the complaints were not public officers or
employees, however, nothing in the language of section 1.21 would support an
interpretation that the confidentiality provision applied differently to different classes
of respondents. See generally Doe v. Supreme Court of Florida , 734 F. Supp. 981
(S.D. Fla. 1990) (holding unconstitutional a Florida provision that prohibited a
complainant from disclosing information about disciplinary proceedings against lawyers).

5Further, we
construe the confidentiality provision as prohibiting the commission and its staff from
disclosing not just a sworn complaint or a copy of a sworn complaint, but also the fact
that a sworn complaint has been filed. We reject the possible interpretation that the
prohibition applies only to the document and not to the fact of the document's existence,
since the confidentiality provision would serve no purpose if it did not extend to the
fact of the document's existence.

6Also, the
statute does not make clear whether a notice stating that the commission has found that it
has no jurisdiction is to identify the complainant. Because we find that the 14-day notice
must identify the complainant and state the specific nature of the complaint, however, the
"no jurisdiction" notice need not repeat that information.